It is pretty clear that President Obama today relied on Article II to attack the Islamist State (IS) in Iraq. I have addressed the legality of such unilateral military action here and here. I have also argued that the 2002 AUMF could be used as a basis for attacks in Iraq now. But the administration appears to have rejected reliance on any AUMF. That decision, and the unilateral military action under Article II, raise a question about the wisdom of unilateralism. About a year ago I asked, “Why Doesn’t President Obama Seek Congressional Approval for Syria?” The question, and reasoning in my answer, apply now with respect to IS in Iraq. Why not get Congress on board, regardless of the legality of unilateral action, especially since some aspects of unilateral action are legally controversial? One can perhaps understand the need to act unilaterally in the short term, to prevent a humanitarian catastrophe. But the planning for the use of force against IS in Iraq has been going on for a while now. If the administration continues to deploy force, it should seek congressional authorization.
The case for congressional authorization now was made a year ago by President Obama, when he explained why he was seeking such authorization for the (later-aborted) Syria attacks.
Now, after careful deliberation, I have decided that the United States should take military action against Syrian regime targets. This would not be an open-ended intervention. We would not put boots on the ground. Instead, our action would be designed to be limited in duration and scope. . . .
But having made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I’m also mindful that I’m the President of the world’s oldest constitutional democracy. I’ve long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people. And that’s why I’ve made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress. . . .
In the coming days, my administration stands ready to provide every member with the information they need to understand what happened in Syria and why it has such profound implications for America’s national security. And all of us should be accountable as we move forward, and that can only be accomplished with a vote. . . .
Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective. We should have this debate, because the issues are too big for business as usual. . . .
A country faces few decisions as grave as using military force, even when that force is limited. I respect the views of those who call for caution, particularly as our country emerges from a time of war that I was elected in part to end. . . .
So just as I will take this case to Congress, I will also deliver this message to the world. . . .
We all know there are no easy options. But I wasn’t elected to avoid hard decisions. And neither were the members of the House and the Senate. I’ve told you what I believe, that our security and our values demand that we cannot turn away from the massacre of countless civilians with chemical weapons. And our democracy is stronger when the President and the people’s representatives stand together.
Powerful stuff. And every bit of it persuasive.
In fact, it is more persuasive as applied to the current situation in Iraq. For IS in Iraq, unlike Assad in Syria, poses a direct and unambiguous threat to the United States. Here is what a prominent member of the President’s party, Senator Dianne Feinstein, said today:
[IS, or ISIL] is not a typical terrorist organization—it is a terrorist army, operating with military expertise, advancing across Iraq and rapidly consolidating its position. . . .
I believe that once this group solidifies its hold on what it calls the Islamic State, its next target may be Baghdad.
It has become clear that ISIL is recruiting fighters in Western countries, training them to fight its battles in the Middle East and possibly returning them to European and American cities to attack us in our backyard. We simply cannot allow this to happen.
It takes an army to defeat an army, and I believe that we either confront ISIL now or we will be forced to deal with an even stronger enemy in the future. Inaction is no longer an option.
Against this background, the administration should get Congress to authorize force. Doing so would be politically draining, but the administration would surely succeed. And it would benefit politically in the medium term. Congress supports the President’s actions now, but the cracks in that support are already showing, with some thinking the President should go very slow and others thinking he should be more aggressive. Beyond the President’s self-interest, seeking congressional support is the right thing to do. As the President said last year: “our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people.” As he also said, “all of us” – the President and members of Congress, and (presumably) the American People – “should be accountable as we move forward, and that can only be accomplished with a vote.” As the President added, “the country will be stronger if we take this course, and our actions will be even more effective,” and “[w]e should have this debate, because the issues are too big for business as usual.” As he also added, “our democracy is stronger when the President and the people’s representatives stand together.”
The logic of the President’s speech last year so obviously applies to the Iraq situation that if he does not now seek congressional authorization, one might reasonably question his sincerity last August – as many did at the time. On the other hand, seeking congressional authorization now would show that the President really meant what he said last year.